New South Wales Consolidated Acts

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EVIDENCE ACT 1995 - SECT 169

Failure or refusal to comply with requests

169 Failure or refusal to comply with requests

(1) If the party has, without reasonable cause, failed or refused to comply with a request, the court may, on application, make one or more of the following orders:
(a) an order directing the party to comply with the request,
(b) an order that the party produce a specified document or thing, or call as a witness a specified person, as mentioned in section 166,
(c) an order that the evidence in relation to which the request was made is not to be admitted in evidence,
(d) such order with respect to adjournment or costs as is just.
(2) If the party had, within a reasonable time after receiving the request, informed the other party that it refuses to comply with the request, any application under subsection (1) by the other party must be made within a reasonable time after being so informed.
(3) The court may, on application, direct that evidence in relation to which a request was made is not to be admitted in evidence if an order made by it under subsection (1) (a) or (b) is not complied with.
(4) Without limiting the circumstances that may constitute reasonable cause for a party to fail to comply with a request, it is reasonable cause to fail to comply with a request if:
(a) the document or thing to be produced is not available to the party, or
(b) the existence and contents of the document are not in issue in the proceeding in which evidence of the document is proposed to be adduced, or
(c) the person to be called as a witness is not available.
(5) Without limiting the matters that the court may take into account in relation to the exercise of a power under subsection (1), it is to take into account:
(a) the importance in the proceeding of the evidence in relation to which the request was made, and
(b) whether there is likely to be a dispute about the matter to which the evidence relates, and
(c) whether there is a reasonable doubt as to the authenticity or accuracy of the evidence that is, or the document the contents of which are, sought to be proved, and
(d) whether there is a reasonable doubt as to the authenticity of the document or thing that is sought to be tendered, and
(e) if the request relates to evidence of a previous representation--whether there is a reasonable doubt as to the accuracy of the representation or of the evidence on which it was based, and
(f) in the case of a request referred to in paragraph (g) of the definition of
"request" in section 166--whether another person is available to give evidence about the conviction or the facts that were in issue in the proceeding in which the conviction was obtained, and
(g) whether compliance with the request would involve undue expense or delay or would not be reasonably practicable, and
(h) the nature of the proceeding.
Note : Clause 5 of Part 2 of the Dictionary is about the availability of documents and things, and clause 4 of Part 2 of the Dictionary is about the availability of persons.



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